{"id":660,"date":"2012-08-03T15:25:58","date_gmt":"2012-08-03T15:25:58","guid":{"rendered":"http:\/\/vtjuryinstructions.org\/?page_id=660"},"modified":"2026-02-13T18:57:48","modified_gmt":"2026-02-13T18:57:48","slug":"defendants-statements-testimony-and-character","status":"publish","type":"page","link":"https:\/\/vtjuryinstructions.org\/?page_id=660","title":{"rendered":"Defendant’s Statements, Testimony, and Character"},"content":{"rendered":"

CR05-351.\u00a0 Defendant’s Out-of-Court Statements<\/a> (07\/28\/03).\u00a0 See<\/em> State v. Kolts<\/u>, 2018 VT 131, \u00b6\u00b6 39\u201341 (finding no error with trial court\u2019s instruction regarding voluntariness of confession).<\/p>\n

CR05-301.\u00a0 Defendant Not Testifying at\u00a0Trial<\/a>\u00a0(06\/01\/07).\u00a0 It is the defendant\u2019s choice of whether to give this instruction, and the defendant also has some discretion in choosing the language to be used.\u00a0 The following statute applies:<\/p>\n

13 V.S.A. \u00a7 6601: Respondent as witness<\/p>\n

In the trial of complaints, informations, indictments and other proceedings against persons charged with crimes or offenses, the person so charged shall, at his own request and not otherwise, be deemed a competent witness.\u00a0 The credit to be given to his testimony shall be left solely to the jury, under the instructions of the court but the failure of such person to testify shall not be a matter of comment to the jury by either the court or the prosecutor and shall not be considered by the jury as evidence against him.<\/p>\n

The Vermont Supreme Court has indicated that the defendant has the right to decide whether or not an instruction will be given.\u00a0 The trial court asks:\u00a0 Defendant, do you desire that the court comment on your failure to take the stand?\u00a0 If the answer is no, say nothing.\u00a0 If the answer is yes, then get the defendant\u2019s request on the record.<\/p>\n

\u00a0\u00a0\u00a0\u00a0 We are of the firm opinion that the better procedure is for the trial court to ascertain the position of a respondent who has not testified to determine whether he desires that the instruction be given and then give the instruction only when it is requested by him. This places the burden of choice on the respondent rather than the court to decide whether the jury shall be instructed as to the respondent\u2019s rights under the statute. This decision is where it should rest in fairness to the respondent. He may feel that under the facts appearing in his case such an instruction would be prejudicial or, on the other hand, that it might be helpful or favorable to him if given. It should be for him to elect whether or not the instruction shall be given to the jury.<\/p>\n

State v. Emrick<\/span>, 129 Vt. 330, 333 (1971).<\/p>\n

In 2025, a group of law professors submitted a proposed revision to CR05-301. The proposal would have added language that provides jurors with innocent reasons why a defendant might choose not to testify. The Committee considered the proposal and decided not to act on it until that type of instruction is litigated and the Supreme Court and\/or the legislature provides additional guidance.<\/p>\n

CR05-311.\u00a0 Defendant Testifying As Witness At Trial<\/a> (06\/01\/07).\u00a0 This instruction may be appropriate in a case where the defendant testifies as a witness, but the court should give the instruction only if the defendant requests it.<\/p>\n

CR05-321.\u00a0 Pro Se Defendant<\/a>\u00a0 (02\/09\/22).\u00a0 This instruction, intended for use when a defendant is not represented by an attorney at trial, derives from the instruction given in State v. Ronald Davis<\/u>, 2270-7-18 Cncr (Judge Maley), and from the Third Circuit<\/a> and Ninth Circuit<\/a> model instructions. Courts should modify this instruction as necessary to fit the circumstances.<\/p>\n

CR05-501.\u00a0 Evidence of Flight as Showing Consciousness of Guilt<\/a> (01\/08\/21).\u00a0 This revised instruction is based on the \u201c[b]est practice\u201d as suggested in State v. Welch<\/u>, 2020 VT 74, \u00b6 16, where the Supreme Court identified the need for \u201cmore specificity\u201d in the instruction to ensure that guilty verdicts are \u201cnot based solely on the flight evidence.\u201d Id<\/u>.; but<\/em> see <\/em>State v. Stephens<\/u>, 2020 VT 87, \u00b6 37 (2020) (failure to give unrequested<\/em> limiting instruction when admitting evidence of flight not plain error as a matter of law); State v. Murphy<\/u>, 2023 VT 8, \u00b6\u00b6 20\u201326 (same). The Court had earlier discussed evidence of flight in State v. Alexander<\/u>, 2005 VT 25, \u00b6 5, 178 Vt. 482; State v. Carter<\/u>, 164 Vt. 545, 548 (1996); State v. Giroux<\/u>, 151 Vt. 361 (1989); and in State v. Unwin<\/u>, 139 Vt. 186 (1980).\u00a0 See also the reporter\u2019s notes<\/a> on the state\u2019s introduction of evidence of a false or fictitious alibi as showing consciousness of guilt (CR09-021).<\/p>\n

CR05-511.\u00a0 Evidence of Defendant’s Prior Bad Acts<\/a> (07\/29\/05).\u00a0\u00a0Generally, before evidence of prior bad acts is admitted, the trial court must determine the purposes for which the evidence is admitted.\u00a0 A preliminary hearing under V.R.E. 104 and V.R.E. 403 would generally seem advisable, but more recent cases have begun suggesting that the issue be reserved for trial, when the relevance of the acts can be better determined.\u00a0 State v. Connor<\/span>, 2011 VT 23, 189 Vt. 587 (mem.); State v. Williams<\/span>, 2010 VT 77, 188 Vt. 405.\u00a0 In any event, any limiting instruction must be tailored to fit the circumstances of the case.\u00a0 Prior bad acts have been admitted as part of a concerted scheme or plan of molestation, e.g., State v. Catsam<\/span>, 148 Vt. 366, 380-81 (1987), as \u201csignature\u201d evidence to show identity, e.g., State v. Bruyette<\/span>, 158 Vt. 21 (1992); as context for statutory rape, e.g., State v. Searles<\/span>, 159 Vt. 525 (1993), to rebut a claim of fabrication, e.g., State v. Brown<\/span>, 2010 VT 103, 189 Vt. 88, and to establish the defendant\u2019s propensity to engage in sexual conduct with his daughter in State v. Forbes<\/span>, 161 Vt. 327, 331 (1994).\u00a0 Other recent cases have included evidence of drug use by the complaining witness, State v. Faham<\/span>, 2011 VT 55 (mem.); State v. Memoli<\/span>, 2011 VT 15, 189 Vt. 237, and evidence of the defendant\u2019s history of domestic violence to show context for the relationship, State v. Mead<\/span>, 2012 VT 36; State v. Connor<\/span>, 2011 VT 23, 189 Vt. 587 (mem.), State v. Williams<\/span>, 2010 VT 77, 188 Vt. 405.<\/p>\n

CR05-521.\u00a0 Evidence of Defendant’s Criminal Convictions<\/a> (01\/04\/02)<\/p>\n

CR05-531.\u00a0\u00a0Evidence\u00a0of Defendant’s Good Character and Reputation<\/a> (04\/21\/03)<\/p>\n

CR05-541.\u00a0 Cross-Examination\u00a0Concerning Character or Reputation<\/a> (06\/09\/03)<\/p>\n","protected":false},"excerpt":{"rendered":"

CR05-351.\u00a0 Defendant’s Out-of-Court Statements (07\/28\/03).\u00a0 See State v. Kolts, 2018 VT 131, \u00b6\u00b6 39\u201341 (finding no error with trial court\u2019s instruction regarding voluntariness of confession). CR05-301.\u00a0 Defendant Not Testifying at\u00a0Trial\u00a0(06\/01\/07).\u00a0 It is the defendant\u2019s choice of whether to give this … Continue reading →<\/span><\/a><\/p>\n","protected":false},"author":1,"featured_media":0,"parent":653,"menu_order":0,"comment_status":"closed","ping_status":"closed","template":"","meta":{"footnotes":""},"class_list":["post-660","page","type-page","status-publish","hentry"],"_links":{"self":[{"href":"https:\/\/vtjuryinstructions.org\/index.php?rest_route=\/wp\/v2\/pages\/660","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/vtjuryinstructions.org\/index.php?rest_route=\/wp\/v2\/pages"}],"about":[{"href":"https:\/\/vtjuryinstructions.org\/index.php?rest_route=\/wp\/v2\/types\/page"}],"author":[{"embeddable":true,"href":"https:\/\/vtjuryinstructions.org\/index.php?rest_route=\/wp\/v2\/users\/1"}],"replies":[{"embeddable":true,"href":"https:\/\/vtjuryinstructions.org\/index.php?rest_route=%2Fwp%2Fv2%2Fcomments&post=660"}],"version-history":[{"count":10,"href":"https:\/\/vtjuryinstructions.org\/index.php?rest_route=\/wp\/v2\/pages\/660\/revisions"}],"predecessor-version":[{"id":1847,"href":"https:\/\/vtjuryinstructions.org\/index.php?rest_route=\/wp\/v2\/pages\/660\/revisions\/1847"}],"up":[{"embeddable":true,"href":"https:\/\/vtjuryinstructions.org\/index.php?rest_route=\/wp\/v2\/pages\/653"}],"wp:attachment":[{"href":"https:\/\/vtjuryinstructions.org\/index.php?rest_route=%2Fwp%2Fv2%2Fmedia&parent=660"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}